JUDGMENT : N.Kotiswar Singh, J. Heard Mr. A. Tiwari, learned Amicus Curiae appearing for the appellant. Also heard Ms. B. Bhuyan, learned Senior counsel as well as Additional Public Prosecutor, Assam appearing for the State/respondent No.1. 2. This is an appeal from jail. 3. The present appeal has been preferred against the judgment and order dated 22.06.2018 passed by the learned Sessions Judge, Bongaigaon in Sessions Case No.114 (BNGN)/2014 arising out of G.R. Case No.445 of 2014 by which the appellant has been convicted under Section 302 IPC and was sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000/-(Rupees five thousand) only and in default of payment of fine to undergo rigorous imprisonment for further 3(three) months. 4. This is a case involving death of the wife of appellant within the four walls of the house and as such, there was no eye witness except the presence of the appellant in the place of occurrence. 5. An F.I.R. was lodged on 30.05.2014 by one Aminul Islam Molla, the brother of the deceased Musstt. Jamful Bibi before the New Bongaigaon Police Patrolling Post, New Bongaigaon, Bongaigaon stating that at around 7 P.M. on 29.05.2014 his elder sister Musstt. Jamful Bibi had quarreled over some domestic matter in their residence and in the fit of anger the appellant, Md. Fatik Ali strangled her with the saree which she was wearing and on coming to know about the incident on the next morning, the complaint was lodged. 6. After registration of the F.I.R., the necessary investigation was carried out and on conclusion of the investigation, the appellant was charged under Section 302 IPC for having committed the offence of murder of the deceased on 29.05.2014 at 7 P.M. 7. The prosecution examined as many as 16 (sixteen) witnesses and also adduced other evidences. 8. The appellant pleaded not guilty to the same and in his statement recorded under Section 313 Cr.P.C., the appellant while denying murder of the deceased, admitted that there was a quarrel between him and his deceased wife and that he had hit her once during the quarrel. However, he claimed to have no knowledge under what circumstances she died. 8. The appellant pleaded not guilty to the same and in his statement recorded under Section 313 Cr.P.C., the appellant while denying murder of the deceased, admitted that there was a quarrel between him and his deceased wife and that he had hit her once during the quarrel. However, he claimed to have no knowledge under what circumstances she died. Learned Amicus Curiae appearing for the appellant submits that the incident had occurred in the fit of anger without any premeditation and as such, at best it can be a culpable homicide not amounting to murder and punishable under Section 304 IPC Part II. 9. We will examine the aforesaid submissions advanced. We will examine the evidences on record on the basis of which the learned Trial Court gave the finding. We will also examine the reasons and conclusion arrived at by the learned Tribunal in convicting the appellant under Section 302 IPC before we consider the plea taken before us in this appeal. 10. As mentioned above, as many as 16 (sixteen) witnesses were examined. 11. PW1, Aminul Islam Mollah is the informant who had stated that there used to be frequent quarrel between his sister Jamful Bibi and brother-in-law, Fatik Ali, the appellant. He stated that on the day of occurrence his sister and brother-in-law had quarreled. He also stated that though he was not an eye witness and not present at the time of occurrence , on the day of occurrence, on hearing hue and cry when he went to the house of the deceased, he saw that his elder sister was lying dead on a bed inside the house. He also saw cut injury on the forehead and strangulation mark on the neck of his elder sister. He also stated that the police had seized the saree which was used to commit the crime. In the cross-examination, PW1 admitted that he was not at the place of occurrence but was in his father-in-law’s house and as such, he was not an eye witness. However, he also stated that on earlier occasion, his sister had lodged a complaint against them over a landed property which however, was reconciled subsequently. 12. In the cross-examination, PW1 admitted that he was not at the place of occurrence but was in his father-in-law’s house and as such, he was not an eye witness. However, he also stated that on earlier occasion, his sister had lodged a complaint against them over a landed property which however, was reconciled subsequently. 12. Since there was no eye witness account and death had occurred within the four walls of the domestic house of the appellant and the deceased and the appellant was present, a proper understanding of the medical evidence would be critical. 13. In this connection, we would refer to the evidence of the Doctor who conducted the post-mortem examination on the dead body of the deceased, namely, Dr. Prasanta Sarkar who was examined as PW2. In his testimony, PW2 stated that he found the following injuries, “Diffuse bruises, bluish in colour at the front of neck upper part both sides. On neck dissection diffuse contusion of soft tissue in the upper part. Trachea found compressed antero posteriorly. Hyoid bone fractured with contusion of surrounding soft tissue.” PW2 gave the opinion that the cause of death is due to asphyxia following manual strangulation which is antemortem and homicidal in nature. In his cross-examination, PW2 stated that he did not find any ligature mark on the neck of the deceased. 14. PW3, Kamaluddin Sheikh, a neighbor who claimed that the appellant had made an extra-judicial confessional statement to the effect that on the day of occurrence, the appellant had come and told him that he (the appellant) had quarrelled with his (appellant’s) wife and had beaten his wife and later on he came to know that his wife Jamful Bibi had died. 15. PW4, Kitap Ali Khan is also another witness in the neighbourhood who also deposed to the fact that the appellant had given an extra-judicial confessional statement to him stating that on the next day of the incident the appellant had stated that the previous night he had quarrelled with his wife and she had given blows to him and that he had pressed her neck and perhaps, because of which she died. 16. PW5, Md. Jomiruddin Mullah, the VDP Secretary of Bhauraguri village had also stated that the appellant had made an extra judicial confession to him that he had killed Jamful. 17. PW6, Md. 16. PW5, Md. Jomiruddin Mullah, the VDP Secretary of Bhauraguri village had also stated that the appellant had made an extra judicial confession to him that he had killed Jamful. 17. PW6, Md. Kasem Ali Seikh, before whom, according to the prosecution, the appellant had made a confessional statement, turned hostile in the trial. 18. PW7, Md. Chand Miya, a co-villager who had stated that on being asked by the public, the appellant Fatik had confessed that he had killed the deceased. 19. Similarly, PW8, Md. Hatem Ali, another co-villager also stated that the appellant had made the confessional statement before the public that he had killed his wife. Though in the cross-examination, he stated that the appellant did not make any confessional statement before him and also stated that though the appellant had confessed before the public, he himself did not hear the same. 20. PW9, Md. Sahidur Islam, is not an eye witness nor he deposed any evidence of substance as he had come to the place of occurrence after the people had assembled and who were merely discussing that the appellant had killed Jamful by strangulation and as such, it is merely a hearsay evidence. 21. PW10, Md. Omar Ali is also not an eye witness. His evidence is also of not much relevance as what has been stated by him is hearsay evidence inasmuch as he heard from the people that the appellant Fatik Ali had killed his wife Jamful. 22. PW11, Musstt. Sarmala Bibi is the step mother of the deceased. Though she was not an eye witness, she was near the vicinity of the place of occurrence. She is the one who stated that after hearing the cry of the granddaughter, she came to the house and discovered the deceased who did not respond even after pouring water on her head and then the appellant told her that he had killed the deceased. She also stated that in front of the public also, the appellant had confessed that he had killed his wife by pressing her neck with cloth, thus by strangulation. 23. PW12, Md. Khairul Islam @ Haque is another co-villager who is the witness to seizure of the sareeat the appellant’s house. He also stated that he saw an injury on the head of the dead body. 24. 23. PW12, Md. Khairul Islam @ Haque is another co-villager who is the witness to seizure of the sareeat the appellant’s house. He also stated that he saw an injury on the head of the dead body. 24. PW13, Nur Islam is not an eye witness but witness to the inquest on the dead body. 25. PW14, Kuldip Hazarika, was the Extra Assistant Commissioner (EAC), Bongaigaon who had conducted the inquest of the dead body. He stated that there were bruises on the eyes and limbs of the body were loose. He also stated that at the time of inquest, it appeared that the deceased had died due to strangulation but to ascertain the cause, the dead body was sent for post-mortemexamination. 26. PW15, Syeda Farida Afzal Jinnat was the Munsiff-cum-Judicial Magistrate, Bongaigaon before whom the appellant had made the confessional statement. She stated about the production of appellant and she explained to the appellant that he was not bound to make any confessional statement and if he does so, it can be used as evidence against him. She also stated that after making necessary verification and queries, she was satisfied that the appellant was making the statement voluntarily and thereafter, proceeded to record his statement which was exhibited as Exhibit 5 and she duly proved the said document, i.e. confessional statement and her signatures appended thereto. 27. PW16, Nidamul Islam, is the I.O. of the case who narrated about the manner in which the investigation was conducted in the said case. However, it may be noted that the said I.O. who was examined as PW16 stated that PW4, PW5 and PW7 who had mentioned about the confessional statement being made by the appellant had not stated to the I.O. when he was investigating the matter. 28. It may be also apposite to refer to the statements made by the appellant under Section 313 of the Cr.P.C. In respect of the Question No.1, as to whether the appellant used to quarrel with his wife, the appellant stated that sometimes he had quarrelled with his wife because of domestic issues. As regards Question No.3, whether he had seen any cut injury on the forehead and mark of hanging around the neck of the deceased, the appellant replied that he did not know. As regards Question No.3, whether he had seen any cut injury on the forehead and mark of hanging around the neck of the deceased, the appellant replied that he did not know. In respect of Question No.4 relating to public confession testified by the witnesses mentioned, the appellant answered that he did not make any such public confession. As regards Question No.6 in respect of the various injury marks found on the dead body of the deceased Jamful Bibi, the appellant also stated that he did not know whether the deceased had sustained any injury. As regards Question No.8 about the evidence of PW3 Kamaluddin Sheikh that on the day of occurrence of the incident at around 7/8 P.M. when he was standing in front of his house, the appellant had come and told him that he had quarrelled with his wife and that he had beaten her and later on he heard that his wife died, the appellant replied that on that day a quarrel took place between him and his wife but he had not beaten her. Later, the appellant stated that he had slapped her but he claimed that he did not know how she died. As regards Question No.15 about confession made before the public as testified by the witnesses, the appellant stated that out of fear of the police assaulting him, he admitted the incident. Again as regards Question No.21 about the evidence of Sarmala Bibi, PW11 who stated that since two years prior to the incident, the appellant with his wife used to reside in their mother in law’s (PW11) residence and during that period he used to quarrel with his wife and even had beaten her, and the appellant replied that only on that night of the incident, he had slapped her once. As regards Question No.29 about the statement made by the appellant under Section 164 Cr.P.C., the appellant stated that he made the statement out of fear of the police that police would torture him. As regards other questions put to the appellant, the appellant claimed that he is innocent and he does not know how the incident took place. 29. The Trial Court considered the evidences on record as discussed above and attached much importance to the extra-judicial confessional statement made by the appellant before PW3, PW5 and PW7 respectively in convicting the appellant. 30. 29. The Trial Court considered the evidences on record as discussed above and attached much importance to the extra-judicial confessional statement made by the appellant before PW3, PW5 and PW7 respectively in convicting the appellant. 30. The Trial Court also laid great emphasis on the statement of the appellant recorded under Section 164 Cr.P.C. The Trial Court observed that though in his statement made under Section 164 Cr.P.C., the appellant did not confess his guilt, yet, he admitted that during the last 4(four) months he was quarrelling with his deceased wife for giving money to his mother and also of beating his wife. 31. The Trial Court also noted that from the statement of the appellant before the Magistrate in the form of confessional statement, it is evident that the appellant on the very night of the incident was sleeping with the deceased and in the morning she was found lying dead near him. The Trial Court considered the plea of the appellant that the deceased herself had caused her death by fastening her neck with the sareeand found it to be not possible inasmuch as if she had tried to do so, she would have certainly struggled and further when the appellant was sleeping with her in one bed, it is not possible to believe that it is beyond his knowledge as to how the death has occurred. 32. Taking into consideration the evidence of quarrel of the appellant with the deceased on that night as also clearly admitted by the appellant in his statement made under Section 313 Cr.P.C., the Trial Court proceeded to observe that if the presence of the appellant is not denied, in absence of any evidence, the presence of third person in the room of the husband and wife is ruled out. 33. The Trial Court held that under the circumstances, it is the responsibility of the accused husband (appellant) to explain his conduct and cause of death who being his wife was sleeping in one bed and was found dead on the early morning with the saree-fastening on the neck. However, the appellant did not offer any such explanation. In that context, the Trial Court also referred to the evidences of PW4 and PW11 of the strained relationship between them. However, the appellant did not offer any such explanation. In that context, the Trial Court also referred to the evidences of PW4 and PW11 of the strained relationship between them. Thus, rejecting the exculpatory part of the appellant in the confessional statement made under Section 164 Cr.P.C., the statement of the accused under Section 313 Cr.P.C. and other evidences, the Trial Court held that it has been conclusively proved that the appellant was the person who had committed the crime. 34. The Trial Court also rejected the statement of the appellant under Section 313 Cr.P.C. that if he did not confess the police would take him and assault him being not credible, thus the confessional statement was not voluntary. 35. The Trial Court also observed that in the statement made under Section 313 Cr.P.C., the appellant had admitted quarrelling with his wife and that he had slapped her on that night. 36. The Trial Court, thereafter, considered the extra judicial confessional statement made by the appellant as per the testimony of the PW4, PW7 and PW11 and considered the same to be cogent, convincing and reliable. 37. The Trial Court, accordingly, on the basis of the evidences on record, i.e. extra judicial confessional statement made by the appellant as well as the failure to explain properly all the circumstances in which the deceased wife was found dead on the same bed where they were staying together, held that the prosecution has been able to prove the charge against the appellant and accordingly, convicted him under Section 302 I.P.C. 38. As we examine the evidences on record and the submissions advanced, it is quite apparent that there was no eye witness to the incident. But the fact remains that the death had occurred within the four walls of the private bed room of the appellant where he was admittedly present with the deceased on the night. 39. If the death had occurred within the four walls of a domestic house in presence of the accused and where the presence of any other third party is not possible, as in the present case, then it will be incumbent upon the accused to explain the circumstances in which the death has occurred. This is an instance where the onus shifts on the accused to prove his innocence. 40. This is an instance where the onus shifts on the accused to prove his innocence. 40. In any criminal prosecution, onus is always on prosecution to establish the charge beyond reasonable doubt. But in such cases where death occurs within the privacy of the residential house where no other third person would have access, certainly, the burden shifts to the accused to prove that he has not committed the offence. However, before the accused is called upon to discharge the burden of proving his innocence, the prosecution must first establish the foundational facts, that, a homicide had occurred within the confines of the private house where there is no possibility of access for any other person other than the accused and that the accused, was staying with the deceased at the time of occurrence. 41. In the present case, the prosecution has been able to establish beyond reasonable doubt that the appellant was present in the room where the death had occurred. The incident happened in the bedroom of the appellant and the deceased. Further, a homicide (of the deceased) had occurred by manual strangulation as fully corroborated by medical evidence. 42. It is a fact that the death had occurred within the bed-room where only the appellant and deceased were co-habiting. There is no evidence to the contrary. It is also a fact that no other person was present when the death had occurred. In fact the appellant also did not take any plea of presence of any third person or possibility of any other person having entered the room where the death had occurred. In fact, this is a fact which had been admitted by the appellant himself and not denied when he made the statement under Section 313 Cr.P.C. If that is so, the appellant had an explanation to offer as also provided under Section 106 of the Indian Evidence Act, 1872 which provides that when a fact is specially within the knowledge of a person, the burden of proving the fact is upon him. 43. The law regarding this aspect is well settled. It will be almost impossible for the prosecution to establish an offence when it has occurred within the private confines of which except for the person charged, there is no other person present. 44. In this regard, one may refer to the decision of the Hon’ble Supreme Court in Trimukh Maroti Kirkan Vs. It will be almost impossible for the prosecution to establish an offence when it has occurred within the private confines of which except for the person charged, there is no other person present. 44. In this regard, one may refer to the decision of the Hon’ble Supreme Court in Trimukh Maroti Kirkan Vs. State of Maharashtra, MANU/SC/8543/2006: 2006(10) SC 681 which is also relied on by Ms. Bhuyan, learned Senior counsel for the State. In para No.11, it has been stated by the Hon’ble Supreme Court as follows, “11. If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the Courts. A Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland v. Director of Public Prosecution 1944 AC 315 quoted with approval by Arijit Pasayat, J. in State of Punjab vs. Karnail Singh (2003) 11 SCC 271 ). The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led. The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with traveling on a railway without ticket. Illustration (b) appended to this section throws some light on the content and scope of this provision and it reads: (b) A is charged with traveling on a railway without ticket. The burden of proving that he had a ticket is on him." Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation.” 45. In the present case, we are satisfied that there are sufficient credible evidences which the prosecution has been able to establish that the death had occurred within the four corners of a domestic house and only the appellant was present. If that is so, it was incumbent upon the appellant to explain the circumstances in which the death had occurred. However, the appellant has not offered any explanation. He had pleaded that he did not know how the deceased died. However, at the same time, he also admitted that there was a quarrel between them in the night of the incident. He also stated that he had slapped her because of the quarrel though he also stated that his wife had boxed her. 46. The appellant did not take any specific plea. He took a very vague and ambiguous plea. If he sought to make a suggestion that because he had slapped his wife, or because of punching by his wife, he retaliated and in the process, she died, that does not appear to be corroborated by the medical evidence. 46. The appellant did not take any specific plea. He took a very vague and ambiguous plea. If he sought to make a suggestion that because he had slapped his wife, or because of punching by his wife, he retaliated and in the process, she died, that does not appear to be corroborated by the medical evidence. What the medical evidence shows is that the death appears to have been occurred due to asphyxia following manual strangulation as stated by the Doctor, PW2 who also in his post-mortemreport stated that there were signs of diffused bruises, bluish in colour at the front neck upper part of both sides. Further on neck dissection, there was diffused contusion of soft tissue in the upper part, and trachea was found compressed antero posteriorly, and the hyoid bone was fractured with contusion of surrounding soft tissue. These are all indices for manual strangulation as opined by the Doctor, PW2. He also mentioned that there was no ligature mark on the neck of the deceased, thus ruling out any strangulation by saree as suggested by the appellant. 47. If the deceased was found with saree bound around her neck and if it is a plea of the appellant that the deceased strangulated herself by tying the knot on the neck and pulling it, that does not appear to be corroborated by the medical evidences in absence of ligature mark. 48. If the explanation is found not plausible or found to be untrue, it provides an additional link to the chain of circumstances to implicate a person as also held by the Hon’ble Supreme Court in the aforesaid case of Trimukh Maroti Kirkan (supra). In para No.15 of Trimukh Maroti Kirkan (supra), the Hon’ble Supreme Court observed as follows, “15. In a case based on circumstantial evidence where no eye-witness account is available, there is another principle of law which must be kept in mind. The principle is that when an incriminating circumstance is put to the accused and the said accused either offers no explanation or offers an explanation which is found to be untrue, then the same becomes an additional link in the chain of circumstances to make it complete. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran 679 (para 6); State of U.P. v. Dr. This view has been taken in a catena of decisions of this Court. [See State of Tamil Nadu v. Rajendran 679 (para 6); State of U.P. v. Dr. Ravindra Prakash Mittal AIR 1992 SC 2045 (para 40); State of Maharashtra v. Suresh (2000) 1 SCC 471 (para 27); Ganesh Lal v. State of Rajasthan (2002) 1 SCC 731 (para 15) and Gulab Chand v. State of M.P. (1995) 3 SCC 574 (para 4)].” 49. If we take into consideration the public confessional statement wherein the appellant had clearly admitted to kill his wife as has been done by the Trial Court, the case of the prosecution is strengthened. Yet, even without considering the aforesaid public confessional statement, we are of the view that, the failure of the appellant to explain the circumstances in which his wife died under the facts and circumstances referred to above, would clearly implicate the appellant. 50. We have also noted that while convicting the appellant, the Trial Court relied on the confessional statement made by the appellant and did not solely depend on the public confessional statement, but gave equal importance to the fact of inability of the appellant to explain the circumstances in which the death had occurred. 51. In this regard, one may refer to para No. 31 of the finding of the Trial Court which reads as follows, “31. Further quarrel with the deceased on that night whatever may be the reason was admitted by the accused himself in statement U/S 313 Cr.P.C. While presence of the accused is not denied, in absence of any evidence, presence of third person in the room of the husband and wife stands ruled out. It is the responsibility of the accused husband to explain his conduct and the cause of death of the deceased, who being his wife was sleeping in one bed and in the early morning found her dead by fastening neck with saree. No such explanation has been given by the accused. The evidence of PW4 and PW11 coupled with the statement the accused recorded in the form of confessional statement (Ext 5) shows that the accused had no good relation with his wife. Rejecting the exculpatory part of the statement of the accused in Ext 5 and accepting the other part coupled with statement of the accused U/S 313 Cr.P.C and other evidence. Rejecting the exculpatory part of the statement of the accused in Ext 5 and accepting the other part coupled with statement of the accused U/S 313 Cr.P.C and other evidence. I unhesitatingly come to the conclusion that the accused was the person who committed the crime. Regarding statement of the accused in Ext.5, he in statement U/S 313 Cr.P.C. replied that he afraid that if he does not confess, police again took him and would assault and hence as suggested by police, he gave his statement before Magistrate. But on perusing the statement as discussed above, it is found that there is nothing to be afraid as he did not admit of the alleged offence. Moreover, after giving reflection time for 2 days, his statement was recorded on producing from judicial custody. In statement U/S 313 Cr.P.C. also the accused admitted quarrel with deceased wife and that he slapped her on that night. Though regarding confession before public, he replied that for fear of police assault, he admitted the incident, but on careful perusal of evidence of PWs and the General Diary entry (Ext 9), it reveals that before arrival of police, he admitted his guilt.” 52. Having discussed the evidences and circumstances as above, we are of the view that the above finding of the learned Tribunal does not suffer from any infirmity which requires our interference. Accordingly, the present appeal is dismissed as devoid of any merit. 53. We would like to place on record the able assistance rendered to this Court by Mr. Atal Tiwari, learned Amicus Curiae in conducting this jail appeal who tried to highlight some of the features by which some benefit could have been given to the appellant under Explanation 4 to Section 300 IPC though we do not find any evidence or any such grounds to be acceptable. 54. The learned Amicus Curiae will be paid the honorarium at the rate fixed under the Rules. 55. The jail authorities will be informed about the dismissal of the present appeal. 56. LCRs be remitted immediately to the concerned Court.